Justice v. Texas Department of Criminal Justice

Filing 5

ORDER ADOPTING 3 REPORT AND RECOMMENDATIONS ORDERING the Plaintiffs application for leave to proceed in forma pauperis (DocketNo. 2) is DENIED and Should Plaintiff pay the full filing fee within 15 days after date of final judgment in this case, he shall be allowed to proceed in lawsuit. Signed by Judge Robert W. Schroeder, III on 6/14/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CHRISTOPHER M. JUSTICE

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v.

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TEXAS DEPARTMENT OF CRIMINAL
JUSTICE

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CIVIL ACTION NO. 5:17cv62

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Christopher Justice filed this civil rights lawsuit under 42 U.S.C. §1983
complaining of alleged violations of his constitutional rights. This Court referred the case to the
United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order
for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Plaintiff complains of receiving disciplinary action for refusing a housing assignment
event and states that he has a right to refuse housing under the Americans with Disabilities Act.
Docket No. 1 at 1. Plaintiff contends that the disciplinary case caused him to lose classification
and custodial status, making it impossible for him to make parole. Id. Plaintiff states he believed
the case was in retaliation for his having filed a lawsuit against the Texas Board of Pardons and
Paroles. Id.
Plaintiff also asserts that he had been moved to 8 Building and has not been allowed to
take showers. Id. He stated he had not yet been fed dinner on the evening he was drafting the
lawsuit, placing him in danger of starvation. Id.
The Magistrate Judge determined Plaintiff has previously filed at least three lawsuits or
appeals which were dismissed as frivolous or for failure to state a claim upon which relief may
be granted. Docket No. 3 at 1–2. Consequently, the Magistrate Judge stated Plaintiff could not
proceed under the in forma pauperis statute unless he showed he was in imminent danger of

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serious physical injury as of the time of the filing of the lawsuit. 28 U.S.C. §1915(g); Baños v.
O’Guin, 144 F.3d 883, 885 (5th Cir. 1998).
After reviewing the pleadings, the Magistrate Judge concluded Plaintiff did not pay the full
filing fee and did not show he was in imminent danger of serious physical injury as of the filing
of the lawsuit. Docket No. 3 at 2. The Magistrate Judge therefore concluded Plaintiff’s lawsuit is
barred by the three- strike provision of 28 U.S.C. §1915(g). Id.
Plaintiff received a copy of the Magistrate Judge’s Report on April 4, 2017, see Docket
no. 4, but filed no objections thereto; accordingly, he is barred from de novo review by the
District Judge of those findings, conclusions, and recommendations and, except upon grounds of
plain error, from appellate review of the unobjected-to factual findings and legal conclusions
accepted and adopted by the district court. Douglass v. United Services Automobile Association,
79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct.
3243 (1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review
is “clearly erroneous, abuse of discretion and contrary to law.”) It is accordingly
ORDERED the Report of the Magistrate Judge (Docket No. 3) is ADOPTED as the
opinion of the District Court. It is further
ORDERED the Plaintiff’s application for leave to proceed in forma pauperis (Docket
No. 2) is DENIED and the above-styled civil action is DISMISSED WITH PREJUDICE as
to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented,
but without prejudice to the refiling of this lawsuit without seeking in forma pauperis status and
upon payment of the full statutory filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 15 days after the date of
entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as though the full
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fee had been paid from the outset. Because Justice is ineligible to proceed in forma pauperis,
the full filing fee is $400.00. Payment of the full filing fee will not affect a frivolousness analysis
nor the requirement of exhaustion of administrative remedies. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 14th day of June, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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